Paramount Global Protection Pty Ltd v Gorge - [2008] NSWWCCPD 127

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Paramount Global Protection Pty Ltd v Gorge [2008] NSWWCCPD 127
APPELLANT:	Paramount Global Protection Pty Ltd
RESPONDENT:	Mina Samy Gorge
INSURER:	CGU Workers Compensation (NSW) Limited Agent for the NSW WorkCover Scheme
FILE NUMBER:	WCC2357-08
DATE OF ARBITRATOR’S DECISION:	5 June 2008
DATE OF APPEAL DECISION:	30 October 2008
SUBJECT MATTER OF DECISION:	Injury; causal nexus between assault and later back symptoms; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; expert opinion.
PRESIDENTIAL MEMBER:	Acting Deputy President Anthony Candy
HEARING:	On the papers.
REPRESENTATION:	Appellant:	Sparke Helmore Lawyers
Respondent:	PK Simpson & Co Solicitors
ORDERS MADE ON APPEAL:	The decision of the Arbitrator dated 5 June 2008 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
Each party is to bear his or its own costs of the appeal.

BACKGROUND TO THE APPEAL

Mina Samy Gorge (‘the worker’) was punched in the face while employed as a security guard by Paramount Global Protection Pty Ltd (‘the employer’) on 26 March 2006. This appeal concerns the question whether in addition to facial and dental injuries the worker also injured his back in the assault.
He was soon afterwards taken to St Vincent’s Hospital and the following day saw a general practitioner, Dr Gerges, who gave him a medical certificate in respect of his absence from work up to 30 March 2006. The doctor’s diagnosis was: “deep laceration on lower lips loose lower and upper teeth”. The worker continued to see Dr Gerges and obtained further medical certificates from him.
The worker sought dental attention on 28 March 2006 when he attended Dr Ishak. That practitioner found that there had been complete avulsion of the upper right central and lateral incisors and some mobility in the lower front teeth. Dr Ishak also found there was some tenderness and mobility of the upper right canine.
A claim was made to the employer’s insurer, CGU Workers Compensation (NSW) Limited, which was an agent for the NSW WorkCover Scheme. I shall refer to this as the “insurer” for convenience. The claim was accepted and payments of compensation made.
At some later time the worker began to experience low back pain. Dr Ong, a general practitioner, saw the worker with a complaint of low back pain on 25 August 2006. A CT scan was performed on 28 August 2006 and the worker was referred to an orthopaedic surgeon, Dr Rosenberg. The CT scan was reported on by Dr Lazarus as showing an annular bulge at L3/L4 with no spinal stenosis and a left sided disc protrusion at L4/L5 with mass effect on the left L5 nerve root in the lateral recess.
On 12 February 2007 the insurer advised that liability for the back injury was disputed. This was done on the basis that the injury to the back had been said to have occurred on 28 August 2006 when the worker was not employed by the employer, that he had consulted a doctor other than his nominated treating doctor (Dr Gerges) and that the opinion of Dr James Evans, an orthopaedic surgeon, was that the disc prolapse was not work-related.
On 18 May 2007 the worker’s solicitors wrote to the insurer making a claim for weekly compensation from 26 January 2007, 12% whole person impairment in the sum of $15,500.00 under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’), section 67 compensation for pain and suffering in the sum of $30,000.00, and hospital medical and other expenses. The insurer does not appear to have responded to this letter or later correspondence and an ‘Application to Resolve a Dispute’ claiming such compensation was registered in the Workers Compensation Commission (‘the Commission’) on 2 April 2008. This Application was referred to a Commission Arbitrator.
At a teleconference of 7 May 2008 the Arbitrator indicated that the admissibility of the employer’s late Reply and the issuing of Directions for Production as requested by the employer would be dealt with at the conciliation/arbitration conference on 3 June 2008. On that day the Arbitrator extended the time for lodging of a Reply which denied liability to pay compensation in the most general terms and sought leave to issue Directions for Production to a number of parties, namely Dr Ong, St George Hospital, Dr Mahony, Dr Gerges and St Vincent’s Hospital. It is unclear what orders, if any, the Arbitrator made in relation the issuing of these directions but from what has followed it appears that documents from these bodies were produced.
At the arbitration the claim for weekly payments was discontinued and submissions were made as to whether a finding of injury in respect of the worker’s back should be made in order that the matter might be referred to an Approved Medical Specialist (‘AMS’). The Arbitrator determined that such injury had been established and the following Certificate of Determination (‘COD’) was issued on 5 June 2008:

“1.There is an award for the Applicant in respect of his claim for injury and permanent impairment.

2. I determine that on 24 March 2006 [sic] the Applicant suffered personal injuries to his:
a) Mouth (teeth)
b)Lumbar spine

arising out of and in the course of his employment and for which his employment was a substantial contributing factor.
3.I remit this file for the Registrar to organise an assessment by a relevant Approved Medical Specialist of the degree of permanent impairment resulting from the Applicant’s injuries to his:
a) Mouth (teeth);
b)Lumbar spine;

due to the injury on the 24 March 2006 [sic].

4. The Respondent is to pay the Applicant’s costs as agreed or assessed.”

Apart from the error as to the date of injury stated in the COD, it is puzzling that the worker’s dental injuries were referred to an AMS since no claim for impairment had been made based on them.
An ‘Application to Appeal Against the Decision’ of the Arbitrator was lodged on 3 July 2008 and accordingly the referral to the AMS did not take place.

ISSUES IN DISPUTE

The issue in dispute in the appeal is:
·Whether the Arbitrator erred in finding that the worker had suffered an injury to his lumbar spine on 26 March 2006.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
It was conceded on behalf of the worker that the monetary thresholds specified in section 352(2) are met and I am also satisfied that that is the case. Leave to appeal is granted.

FRESH EVIDENCE

‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCE
Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:
·it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
·the evidence is credible;
·there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
·it is just to admit the evidence in all the circumstances of the individual case.
Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.”
Practice Direction No.6 also provides that if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:
·a schedule of the fresh or additional evidence;
·a copy of the fresh or additional evidence;
·a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and
·submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.
Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.
In this case the employer does seek to rely on additional evidence which is said was obtained after the arbitration hearing on 3 June 2008. This consists of:
·the clinical notes of Dr Gerges from 27 March 2006 to 12 May 2008;
·the Sutherland Hospital Emergency Department record dated 30 March 2008;
·Advanced Personnel Management letters of 28 August and 25 September 2007;
·St George Hospital Emergency Department record dated 29 October 2006.
These documents are said to show that there was a significant delay in the onset of the worker’s lumbar symptoms following the assault in question on 26 March 2006. Apart from this no submission is made as to why this additional evidence should be admitted. On behalf of the worker it is submitted that he had never asserted that he suffered back symptoms at or soon after the assault and therefore the new evidence sought to be relied on has no relevance.
I must consider the documents sought to be relied on in order to ascertain their probative value. The earliest entry in Dr Gerges’ notes that I can see relating to back pain is that of 30 October 2006 a day or so after the worker had gone to hospital with a history of back pain since August. These notes merely confirm what is shown in Dr Gerges’ medical certificates which are in evidence, particularly that of 30 October 2006.
The Discharge Summary of the Sutherland Hospital Emergency Department of 30 March 2008 deals with the worker’s presentation there on that day with a head injury and swelling to the right eye and nose as a result of another assault. The relevance of this is not explained.
The two letters of Advanced Personnel Management (‘APM’) to Dr Gerges relate to a functional capacity evaluation of the worker being undertaken by APM. The doctor was asked to supply information regarding the worker in answer to a number of questions. In response to the earlier letter the doctor expressed the view that the worker was fit to work as a security guard, light process worker or product assembler but not as a commercial cleaner “due to disc prolapse in his lower back”. In the second letter the doctor is asked to supply details of the worker’s medication and previous and current medical information to which latter question Dr Gerges has replied “Disc protrusion of L4/5 with mass effect on the left L5 nerve root. Diagnosed on 28/8/06 by other LMO”. The letters from APM were written by a consultant psychologist, Ms Therese Hatfield. I am unable to see any particular relevance in these.
Finally there is a St George Hospital Discharge Summary of 29 October 2006 signed by a registrar, Dr Yong, addressed to Dr Gp, which is possibly a reference to the worker’s general practitioner whose name was not known. This states that the worker presented on 28 October 2006. The presenting problem was: “BACK PAIN-NON TRAUMATIC BENT OVER TO PICK SOMETHING UP TONIGHT 1800 HRS. HX [history] BACK PROBLEMS IN AUGUST WITH BULGING L3/L4 AND MIDLINE DISC PROTRUSION L4/L5”. This is substantially in accordance with Dr Ong’s report of 25 November 2006 although it does not have the detail contained in that report.
Basten JA in Haider v J P Morgan Holdings Aust Ltd t/as J P Morgan Operations Australia Ltd [2007] NSWCA 158; (2007) 4 DDCR 634, considered the former Practice Direction 6 which was in somewhat different terms to the present Practice Direction which applies in this case. His Honour said the following at [41]:
“This language appears to reflect the conditions which must generally be met before ‘fresh evidence’ is admitted: see Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. However, to limit the admission of ‘new’ evidence to such circumstances is to ignore the fact that the statute expressly provides an alternative to ‘fresh’ evidence by express reference to ‘evidence in addition to or in substitution for’ the evidence received below. To apply a test such as set out in a Practice Direction, although introduced by the amelioratory words ‘in general’, is apt to give rise to error by treating the discretion as fettered in a way which it is not: see in relation to the use of the term ‘further’ evidence in s75A(8) of the Supreme Court Act 1970 (NSW) as applicable in this Court, Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2005] NSWCA 319; (2005) 55 ACSR 1 at [98]–[108]. Further, it is to ignore the reduction of formality and technicality and the requirement to act according to equity, good conscience and the substantial merits of the case, as mandated by s354(1)-(3) (see [15] above).”
After referring to the first reason relied on by the Deputy President in that case in rejecting the new or fresh evidence sought to be relied on, his Honour said the following at [44] and [45]:
“With respect, this ground for refusal to admit a document is difficult to support. Different considerations may well have applied to the arbitrator to whom the application was made only after the arbitration conference had been concluded. Further, on the appeal the document could well have been tendered conditionally, so as to permit the evidence of Mr Fitzgibbon to be adduced in response. Assuming for present purposes that the evidence was material and probative, the statutory obligations and powers imposed and conferred on the Tribunal suggest that the material should have been considered in order to address the substantial merits of the case. Neither the arbitrator’s rejection, nor the failure to challenge that ruling, nor the potential procedural fairness objection, stood in the way of that course.
The second reason that the Deputy President gave was that he was not satisfied that, ‘with reasonable diligence the evidence could not have been obtained before the arbitration hearing’. However, that, with respect, appears to be a direct application of the guidance given by the Practice Direction, with a result that there was a failure to consider the possibility that the evidence might be treated as additional evidence which did not need to satisfy the common understanding of ‘fresh’ evidence. A more flexible test was available, but not applied.”
In this case, as I have earlier said, the employer makes no submissions as to why the evidence ought be admitted apart from its alleged relevance. The transcript of the arbitration does not assist me in determining how the Directions for Production came to be issued. Why no application for adjournment of the arbitration was made so that documents sought could be obtained and later relied on is similarly obscure.

I am generally in agreement with the submissions made on behalf of the worker that the additional evidence adds nothing of substance to the evidentiary material which is required to be considered. Were it necessary to consider this evidence in order to “address the substantial merits of the case”, I would have granted leave to admit this additional evidence. However in this case I cannot see that the evidence is such that leave to admit it on the appeal should be granted. Nor do I consider that the interests of justice require its admission.

SCOPE OF REVIEW

The Court of Appeal has on a number of occasions considered the scope of a review under section 352 of the 1998 Act. Roche DP has comprehensively reviewed these authorities in Ranvet Pty Ltd v Vasilevski [2008] NSWPD 81. It is not necessary I think to set out that review here.

Allsop P, with whom Ipp and Bell JJA agreed, in Cook v Midpart Pty Ltd t/as McDonalds Forster & Anor [2008] NSWCA 151 at [9] and [10] said the following:

“9.After satisfying himself of the appropriateness of proceeding on the papers, and after setting out the submissions of the parties, the Presidential member set out at [27] of his reasons his view of his role on appeal as follows:
The role of the Presidential member on appeal is to review the Arbitrator’s decision as whole. The review is not a rehearing. In this case, the Appellant must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.

10.The decision of this court in Duinker v St Vincent de Paul Society Aged andSpecial Services Limited (Lewisham Nursing Home) [2008] NSWCA 127 at [32] (Hodgson JA, with whom Beazley JA and McColl JA agreed), the discussion in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [22]-[29] (Spigelman CJ, with whom Basten JA and Bryson AJA agreed) and [63]-[66] (Basten JA), and Jeffery v Lintipal PtyLimited [2008] NSWCA 138 at [11] (Basten JA, with whom Hodgson JA agreed) provide powerful support for the proposition that the appeal in s352 of the WIM Act that is to be ‘by way of review’ (s352(6)) is not limited to the identification and correction of error on the part of the Arbitrator. (That is not to say, however, that any demonstrated error would not be persuasive in any appeal.)”

In Department of Corrective Services v Bryce [2008] NSWWCCPD 116 Roche DP said in relation to this topic at [66]:
“Essentially, I am required to conduct a ‘review on the merits’ to decide whether the original decision is wrong or, to decide, ‘what is the true and correct view’ (per Spigelman CJ in Chemler).”
It is in accordance with this statement by the Deputy President that I think I am obliged to approach this appeal by way of review.

EVIDENCE

The Worker’s Evidence

No oral evidence was given at the arbitration but the worker’s claim for compensation and a written statement of the worker dated 28 March 2008 were in evidence. The claim form, which lacks its final page and is undated but is stamped as received on 28 June 2006, makes no mention of the worker’s back having been injured. An earlier Initial Notification of Injury form was faxed by the employer to the insurer on 27 March 2006. The worker was born on 2 April 1974 thus being almost 32 at the date of the assault and 34 now. The relevant part of his statement is that when he was assaulted he was knocked off balance but managed to stop himself from falling to the ground. He had returned to work on 3 May 2006 but nine or ten days after this his supervisor had told him that he could not be kept on as he could not communicate properly with clients and thus he had submitted a claim for compensation. He said that he saw Dr Ong on 25 August 2006 about pain in his lower back. He had been having problems before but had not thought it was important and he did not mention it to any of the doctors.

Dr Medhat Guirgis, an orthopaedic surgeon, saw the worker at the request of his solicitors (report 13 May 2007) and took a history of the worker falling down after the assault in March 2006 but managing to save himself on his outstretched hands. Dr Guirgis obtained a history that: “Some two months after the incident he started developing gradual onset and progressive cause of pain and stiffness in his lower back.” This had gradually and steadily worsened leading to two admissions to St George Hospital. Dr Guirgis reviewed the CT scan of 28 August 2006 and an MRI performed during his hospitalisation at St George Hospital on 23 January 2007 which he considered showed “significant left centro-oblique posterior disc protrusion extending backwards to indent into the anterolateral surface of the thecal sac at the L4-L5 level”. He thought the worker’s employment was a substantial contributing factor to the worker’s injuries. In a separate report Dr Guirgis assessed the permanent impairment in relation to the worker’s back injury at 12%.

There is a discharge summary of St George Hospital indicating that the worker was there as a patient from 19 January to 30 January 2007 with a history of back pain for the preceding nine months (this was originally written as, possibly, “9/52” but has been changed to “9/12”).

In a short letter of 31 October 2006 Dr G Mahony, an orthopaedic surgeon, who had seen the worker at the request of Dr Gerges referred the worker to the physiotherapy department of St George Hospital. That doctor diagnosed L4/5 disc lesion with left L5 nerve root irritation. There is no other report from this doctor.

Dr Gerges in a report of 10 October 2006 to the insurer says that “A punch on the face has produced a disc prolapse due to aggravating a potentially irritable back according to Dr Mahony assessment (Orthopaedic Specialist) dated 1/11/2006.”

Dr Ong saw the worker on 25 August 2006 who told him that “over the previous few months he had noticed left lower limb sciatica discomfort and later noticed development of low back pain as well in the recent weeks.” The worker also told the doctor that he jolted his lower back in an incident when he was assaulted at work in March 2006. Dr Ong, as I have earlier said, referred the worker to Dr Rosenberg, an orthopaedic surgeon, whom the worker said he saw once. There is no report from that doctor in evidence.

The Employer’s Evidence

Dr J.K. Evans, an orthopaedic surgeon, saw the worker at the request of the insurer on 7 December 2006. Dr Evans took a history that about two months after the injury the worker noticed low back pain but no pain anywhere else. He took Nurofen and after that the back pain “seemed to go away”. However, after about a month and a half, the symptom in the lower back returned. Once again he sought no medical attention but took Nurofen. It is not necessary I think to deal with further matters of history obtained by Dr Evans which are elsewhere set out. The relevant part of Dr Evans’ report is as follows:
“• A diagnosis and whether you consider that the injury is consistent with the history provided.
The diagnosis is left-sided disc prolapse L4/5 confirmed by CT scan causing back pain and left thigh pain. The injury is entirely consistent with the history provided except for the time lapse. The type of injury sustained could well have provoked the disc prolapse since a stumble without a complete fall, but, rather, with an effort at righting oneself is a potent cause of disc prolapse.
•Is employment a substantial contributing factor to the injury? If so, how and has it now ceased to be related to employment?
It is with some reluctance I have to say that employment is probably not a substantial contributing factor to his injury given the time lapse of at least two months between the injury and the onset of low back symptoms.”
A number of WorkCover medical certificates provided by Dr Gerges are relied on by the employer; these are dated from 27 March 2006 to 18 December 2006. The certificates make no mention of injury to the worker’s back until 30 October 2006.

Summary of Relevant Evidence:

I set out below the evidence relating to the onset of the back symptoms:

Worker’s statement – 28 March 2008 On 25 August 2006 I saw Dr Ong about my pain in the lower back. I had been having some problems before this but had not thought that it was important and did not mention to any of the doctors.

Dr Ong – 25 November 2006 First presented to me with his low back pain on 25 August 2006… over the previous few months, he had noticed left lower limb sciatica discomfort and later had noticed development of low back pain as well, in the recent weeks

Dr M. Guirgis – 13 May 2007 Some two months after the incident he started developing gradual onset and progressive cause of pain and stiffness in his lower back.

St George Hospital – 30 January 2007 32 year old male presents with low back pain for the past nine months [or nine weeks]. He was assaulted in March 06. Mild low back pain since August 2006. Worsened LBP with frequent exacerbations with numbness left leg.

Dr J.K. Evans – 8 December 2006 About two months after the incident he noticed low back pain but no pain anywhere else.

ARBITRATOR’S REASONS FOR DECISION

The Arbitrator firstly dismissed the opinion of Dr Guirgis as not assisting him in making a determination in the worker’s favour relying on the principles expressed in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (‘Makita’). Nor he thought did the opinion contained in the report of Dr Gerges of 10 November 2006, which was the opinion of Dr Mahony and which was not itself in evidence. The opinion of Dr Ong that “the cause of his current low back injury may be related to his injury that occurred in March 2006” was also discounted by the Arbitrator. The Arbitrator found that Dr Evans had provided a clear indication of the process by which the worker could and probably did sustain injury when he was struck in March 2006. However, the Arbitrator was obliged to note that Dr Evans thought that employment was not a substantial contributing factor to injury because of the time lapse of at least two months between the injury and onset of low back symptoms. The Arbitrator drew attention to the fact that there may have been a discrepancy between the time of the report of low back symptoms and the appearance of those symptoms. He said there was no evidence that the symptoms only appeared two months afterwards but the report of them did. The Arbitrator also relied on the Discharge Summary from the St George Hospital dated 30 January 2007 which referred to low back for the preceding nine months [as I have earlier indicated that figure has been changed from what could have been nine weeks].
The Arbitrator regarded the following matters as being relevant to his finding:
1.The opinion of Dr J.K. Evans that the process by which the Applicant could have sustained back injury was clearly defined by that doctor.
2. The absence of low back symptoms prior to March 2006.
3.The fact that low back pain had appeared two months after the incident and then disappeared for a month and a half.
4.Dr Ong’s opinion that the worker’s back pain could have worsened with the activities of daily living particularly working as a security guard.
5.Low back pain may have been present but overshadowed by the dental injury which the worker suffered.
The Arbitrator noted that the onus was on the worker to prove the connection between the assault of 26 March 2006 and the subsequent disc prolapse and he referred to the decision of the Court of Appeal in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 (‘Seltsam’) where Spigelman CJ said the following at [83]:
“The law in Australia is, in my opinion, as stated by Glass JA in this Court in Fernandez v Tubemakers of Australia Ltd (1975) 2 NSWLR 190 at 197:
‘The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465, or when the expert evidence does not rise above the opinion that a causal connection is possible; EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238: appeal dismissed (1970) 44 ALJR 360n. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence.’”
The Arbitrator also cited further passages from the reasons of the Chief Justice in Seltsam namely:
“The test is whether, on the basis of the primary facts, it is reasonable to draw the inference.” [88],
“Proof on the balance of probabilities, indeed on the beyond reasonable doubt standard, may be established on the basis of circumstantial evidence.” [90] and
“The commonsense approach to causation at common law is quite different from a scientist’s approach to causation….An inference of causation for purposes of the tort of negligence may well be drawn when a scientist …would not draw such an inference.” [143]
The Arbitrator said that it was clear to him, from the report of Dr Ong, that the worker had no other low back injury prior to the incident which occurred on 26 March 2006. The Arbitrator relied on the opinion of Dr Evans as providing an explanation of the means by which the worker sustained an injury to his low back but he questioned Dr Evans’ further opinion as to the time lapse between the injury and onset of symptoms as he had not explained the significance of this. The Arbitrator once more referred to what he regarded as the open question as whether there had been a delay in the onset of low back symptoms or a delay in reporting them. St George Hospital records, he thought, also pointed to symptoms nine months before January 2007 (April 2006). In addition the applicant’s size meant that the blow he suffered must have been very severe to cause him to fall and also to fracture his teeth.
In summary, the Arbitrator asked himself this question: “would it be reasonable on the material before me to infer that somebody who had had no reported previous history of back injury after sustaining an injury when he fell to the ground, doesn’t fall completely but suffers a stumble, which an orthopaedic surgeon says is a potent cause of disc prolapse – is it explicable that he could have suffered that injury at that time despite the lapse of two months from him either experiencing or reporting low back pain symptoms? In my view, it is.”

SUBMISSIONS AND DISCUSSION

There are said to be two separate grounds of appeal, although in reality there appears to be but one. However, I will deal with them in the way that the employer has sought to support the appeal.
The first ground asserts that the Arbitrator erred in finding that there was not a significant delay in the onset of the worker’s back symptoms after the injury in question. The employer then catalogues the histories to various doctors, hospital staff and the worker’s own statement. The employer’s submissions were done without the transcript of the arbitration including the Arbitrator’s ex tempore reasons for decision. The lodging of further submissions was foreshadowed by the employer in the appeal documents but despite the Commission writing to enclose the transcript on 15 July 2008 and inviting further submissions, none have been filed.
The worker is content to adopt the reasons of the Arbitrator and makes no further submission except as to new evidence and costs.
A perusal of the Arbitrator’s reasons has not revealed a finding in the terms alleged. He does however say this at T26.22:
“It might well be- and I would infer, quite reasonably infer- that although symptoms may have been present they were simply not significant enough at that time to be of concern”.
The Arbitrator referred to this matter in his reasons on no fewer than three occasions. At T22.3 he said:
“Now, I think that’s the important statement that we need to stay with between the injury and the low back symptoms. That could well also be described as between the injury and report of low back symptoms because there is no evidence before me that the symptoms only appeared two months afterwards, but the report of them did.”
He went on at T22.14 to say:
“So the situation was that the applicant apparently was injured on 26 March 2006, had no symptoms or didn’t report symptoms for some two months, then noticed them, and then they went away again for a month and a half before they returned, or before he considered them significant.”
The third reference to this is at T25.57:
“As I’ve noted a number of times, it’s unclear whether there was an incident of low back symptoms or simply a delay in reporting them.”
The Arbitrator had adverted to this at T8.36 during the submissions of counsel for the employer:
“But on what basis do you say that he has a delayed onset? How can you definitively tell me that it is not a delay in reporting but it is definitely a delay in onset?”
The inference which the Arbitrator drew as to symptoms being possibly present from the date of the injury was not, I think, open on the evidence. It is contrary to the worker’s own evidence, the histories to doctors and hospital staff and the concession of the worker on this appeal. In this respect the Arbitrator has, I think, resorted to impermissible conjecture rather than drawing a proper inference from the evidence. A history given to staff at St George Hospital in January 2007 of, perhaps, nine months low back pain cannot, in my opinion, be given the same weight as histories given to doctors some months before and, indeed, the worker’s own statement. Similarly, I can find no support for the Arbitrator’s statement at T22.3 that there was a two month delay in reporting symptoms. It is clear from the context that the Arbitrator was referring to the delay from the date of injury rather than from the date of the worker first experiencing back symptoms. The earliest report of back symptoms was made to Dr Ong on 25 August 2006 which is five months after the assault. Whether, nonetheless, the Arbitrator was entitled to make the ultimate finding as to back injury having been received as alleged is a matter to which I will now turn.
The second ground of appeal asserts that the Arbitrator erred in finding that the worker had suffered injury to his lumbar spine on 24 March 2006 [actually 26 March 2006]. It is submitted that the Arbitrator struck out all medical opinion supporting such a finding save for that of Dr Evans and that opinion, it is said, did not support a finding in favour of the worker. No authority is cited by the employer except Makita and, as I have earlier said, the worker makes no submissions in response save for relying upon the reasons given by the Arbitrator.
The Arbitrator relied on Makita to discount Dr Evans’ reference to a period of two months absence of symptoms on the basis that Dr Evans does not explain why the gap was significant. The Arbitrator hypothesised that there may be many people who suffer that type of left-sided disc prolapse at L4/5 going for a period of time with no symptoms. He noted the absence of symptoms for a period of a month and a half after their initial onset. This history only appears in the report of Dr Evans of 8 December 2006. Dr Guirgis refers to the worker “developing repeated acute episodes” and the St George Hospital discharge summary of 30 January 2007 is as I have set out at [44]. I consider that the Arbitrator has once more ventured into conjecture or speculation without any evidence to support his comment as to the experience of “many people”. I cannot say, as a matter of commonsense, that the absence of symptoms for a month and a half with medication has the same medical significance as the initial period of two months or so after the injury when the worker was free of back symptoms. This was a question, in my opinion, which required medical opinion.
I turn now to consider Dr Evans’ report. I have earlier (at [42]) set out his relevant conclusions. It should be noted that Dr Evans is answering a series of questions posed by the insurer. In answer to the first he thought that the injury was entirely consistent with the history except for the time lapse. He went on to express the view that a stumble with the effort of righting himself was a “potent cause” of disc prolapse. The second question relates to the doctor’s opinion, in effect, as to whether the requirements of section 9A of the 1987 Act, which requires that employment be a substantial contributing factor to an injury, have been satisfied. It is not clear whether the doctor’s attention has been directed to the precise provisions of that section or to the many decisions of the Compensation Court, the Commission or Court of Appeal on it. The question, in my opinion, ought to have been: “Do you consider that the worker injured his back in the assault of 26 March and why are you of that opinion, or, if not, why not?” The second part of the question namely: “has it [injury] now ceased to be related to employment?” appears to proceed on the basis that an injury to which employment was a substantial contributing factor may later cease to be related to employment. This I think is misleading and the appropriate question is rather whether incapacity results from the relevant injury. Once a finding is made or the employer or insurer accepts that employment was a substantial contributing factor to an injury that is the end of the matter. The injury cannot cease thereafter to be related to employment.
As I have said, the Arbitrator accepted part of the opinion of Dr Evans but rejected Dr Evans’ view as to the significance of a two month gap in symptoms on the basis that he did not explain this.
Courts have been unwilling to accept the unexplained opinions of experts, whether medical or not, on an issue that the court has to decide. The basis for the opinion expressed must be explained and the court must be able to appraise the soundness or otherwise of the opinion offered. As Heydon JA, as his Honour then was, said in Makita at [59]:
“If Professor Morton’s report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions. In Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39-40, Lord President Cooper, in a case concerning liability for damage to dwelling houses allegedly caused by blasting operations in the course of constructing a sewer, said:
‘… Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court … . Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’”

His Honour went on to say at [64]:
“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’ the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.”
His Honour said the following at [85], and this is the passage to which the Arbitrator referred:
“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of the expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached; that is, the expert’s opinion must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in H G v R (1999) 197 CLR 414, on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’ (at [41]).”
The question on this appeal is whether the Arbitrator was entitled to accept the opinion of Dr Evans in part and reject another part of his opinion which was against the worker. The Arbitrator considered that no reason had been given by Dr Evans for his attaching significance to the period of two months during which the worker apparently suffered no back symptoms. That is true enough, however, nor it seems to me did the doctor when expressing the view that:
“The injury is entirely consistent with the history provided except for the time lapse. The type of injury sustained could well have provoked a disc prolapse since a stumble without a complete fall, but, rather, with an effort at righting oneself is a potent cause of disc prolapse.”
No doubt, Dr Evans, speaking as an orthopaedic surgeon, was drawing on his professional experience and that of his colleagues, so far as it was known to him, and also on his reading of the medical literature. This is however unstated. It seems to me that he gives no more reason for his opinion in relation to the effects of a stumble than he does in relation to the time lapse before the onset of symptoms.
I conclude that the Arbitrator was not entitled to take the partial opinion of Dr Evans which supported the worker’s claim while rejecting the qualifications in relation to that opinion which the doctor expressed.
The question remains whether the Arbitrator was justified on the non-medical evidence alone in finding in the worker’s favour. I am mindful of what was said by Glass JA in Fernandez vTubemakers of Australia Ltd (1975) 2 NSWLR 190 (‘Fernandez’) which I have set out at [47]. In some circumstances the sequence of events may enable a finding of causal connection to be made as in Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538. In this case there is a period of two months between the assault and the onset of back or leg pain. I cannot say, as a matter of commonsense, whether this points to there being a connection between them or not. Medical evidence is required in my view as to this and whether the worker’s disc prolapse is probably of traumatic origin. Evidence regarding the state of the worker’s back before the assault does not appear in his statement but only in the report of Dr Ong. If the worker asks for a causal connection to be made, his direct evidence ought exclude any other relevant injury or condition rather than this being left to be inferred from what he has or has not told various doctors. I do not think, in this case, to use the words of Glass JA in Fernandez, that “the materials offered justify an inference of probable connection”.
In my opinion, the Arbitrator’s reasoning does, with respect, contain a number of material errors which I have indicated and for that reason I do not think his determination should be allowed to stand. There is nothing in Seltsam which is inconsistent with the conclusion to which I have come. The onus is always on a party to prove on the balance of probabilities what is asserted: in this case that there was a causal connection between the assault on 26 March 2006 and the disc prolapse which was subsequently diagnosed. I observe that it may have been helpful to have had the reports of treating specialists, Drs Rosenberg and Mahony, in evidence. Additionally, the statement of the worker should be more explicit in relation to those matters which are only contained in the histories given by him to doctors. These are not entirely consistent.
Although I have determined that the decision of the Arbitrator must be revoked for the reasons stated, this is not, given the state of the evidence, an appropriate case for me to re-determine. The parties should have an opportunity to adduce further evidence in support of their cases and I would expect the Arbitrator to whom the matter will be referred for determination afresh to give appropriate directions in this regard.

DECISION

The decision of the Arbitrator dated 5 June 2008 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.

COSTS

Each party is to pay his or its own costs of the appeal.

Anthony Candy
Acting Deputy President
30 October 2008

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

Worker’s statement – 28 March 2008	On 25 August 2006 I saw Dr Ong about my pain in the lower back. I had been having some problems before this but had not thought that it was important and did not mention to any of the doctors.
Dr Ong – 25 November 2006	First presented to me with his low back pain on 25 August 2006… over the previous few months, he had noticed left lower limb sciatica discomfort and later had noticed development of low back pain as well, in the recent weeks
Dr M. Guirgis – 13 May 2007	Some two months after the incident he started developing gradual onset and progressive cause of pain and stiffness in his lower back.
St George Hospital – 30 January 2007	32 year old male presents with low back pain for the past nine months [or nine weeks]. He was assaulted in March 06. Mild low back pain since August 2006. Worsened LBP with frequent exacerbations with numbness left leg.
Dr J.K. Evans – 8 December 2006	About two months after the incident he noticed low back pain but no pain anywhere else.